From Casetext: Smarter Legal Research

Emmett v. Valentino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 26, 2015
DOCKET NO. A-4093-13T3 (App. Div. Mar. 26, 2015)

Opinion

DOCKET NO. A-4093-13T3

03-26-2015

JEFFREY EMMETT and MYRNA COMO, Plaintiffs-Respondents, v. FANUTI VALENTINO, Defendant-Appellant.

Fanuti Valentino, appellant pro se. Ali Homayouni, attorney for respondents.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5652-12. Fanuti Valentino, appellant pro se. Ali Homayouni, attorney for respondents. PER CURIAM

Defendant appeals from the Law Division's April 1, 2014 order denying his motion for a new trial following the entry of a judgment in plaintiffs' favor in this landlord-tenant action. We reverse and remand for further proceedings.

We derive the following facts from the record. Defendant owns an apartment building. On April 1, 2011, he entered into a two-year lease with plaintiffs. Plaintiffs agreed to pay $950 a month in rent for the first year, and then $1000 a month beginning on April 1, 2012.

New Jersey's Security Deposit Act (SDA), N.J.S.A. 46:8-19 to -26, limits the amount of security any landlord can collect from a tenant to one and one-half times the monthly rent. N.J.S.A. 46:8-21.2. Therefore, the maximum security deposit defendant could charge plaintiffs was $1425. However, defendant required plaintiffs to pay him two and one-half months' rent ($2375) as security. According to plaintiff, the additional $950 he collected represented plaintiffs' "last month's rent."

On July 2, 2012, plaintiffs notified defendant that they were "breaking their lease" and leaving the apartment on August 31, 2012. They paid their $1000 rent for July, but did not pay the rent for August 2012. Defendant alleged he was not able to rent the apartment to new tenants until October 20, 2012. Defendant applied the $2375 security deposit to plaintiffs' rent for August, September, and October, and also charged them for costs he allegedly incurred in cleaning the carpet in the apartment and advertising for new tenants. As a result of these offsets, the security deposit was exhausted and defendant did not return any portion of it to plaintiffs.

On August 10, 2012, plaintiffs and four other tenants filed a complaint against defendant in the Law Division alleging, among other things, that defendant had improperly withheld their security deposit in violation of the SDA. Defendant filed an answer. Over the course of the next year, the other tenants resolved their disputes with defendant. In addition, all of plaintiffs' claims, with the exception of their contention that defendant had wrongfully withheld their security deposit, were dismissed.

Following a one-day bench trial, the judge found that defendant violated N.J.S.A. 46:8-21.2 by charging plaintiffs two and one-half months' rent. N.J.S.A. 46:8-21.2 does not provide for a specific penalty if a landlord improperly requires a security deposit in excess of one and one-half months' rent. However, the SDA does provide tenants with a remedy if a landlord improperly withholds all or part of a security deposit. Reilly v. Weiss, 406 N.J. Super. 71, 79 (App. Div. 2009). In this regard,

N.J.S.A. 46:8-21.1 requires the landlord to return the tenant's security deposit and interest accrued "[w]ithin 30 days after the termination of the [] lease . . . less any charges expended in accordance with the terms of [the] lease." Any deductions the landlord makes must be "itemized," and notice must be forwarded to the tenant. Ibid. If the landlord violates this section of the SDA, the tenant may bring suit, and "the court upon finding for the tenant . . . shall award recovery of double the amount of said moneys, together with the full costs of
any action and, in the court's discretion, reasonable attorneys' fees." Ibid.



[Reilly, supra, 406 N.J. Super. at 79-80.]
Plaintiffs alleged that defendant should have returned at least a portion of their security deposit to them after they vacated the apartment and, because he did not, they were entitled to the penalty prescribed by N.J.S.A. 46:8-21.1.

In Reilly, however, we held that "the 'doubling' remedy provided by N.J.S.A. 46:8-21.1" does not automatically apply "if in fact the tenant has violated his [or her own] obligations under the lease." Reilly, supra, 406 N.J. Super. at 80. For example, if a tenant breaks a lease and fails to pay rent, the landlord may apply the security deposit to offset the unpaid rent. Ibid. In such a situation, "the trial judge must determine the amount of those offsets and, if they are greater than the security deposit withheld, there is no deposit to return to the tenant and no valid basis for enforcing the notification requirement of the statute." Penbara v. Straczynski, 347 N.J. Super. 155, 160-61 (App. Div. 2002). Once this calculation is performed, the tenant is only entitled "to recovery of double the net amount wrongfully withheld, not double the amount of the initial deposit." Reilly, supra, 406 N.J. Super. at 80-81 (citations and quotation marks omitted).

Here, the trial judge did not follow these rules. Instead, the judge first doubled the amount of the initial security deposit plaintiffs paid ($2375) to $4750. He then offset the unpaid rent for August, September, and October 2012 ($3000) from this amount, leaving a balance of $1750. Because defendant did not submit any receipts documenting his claim, the judge rejected defendant's argument that he incurred expenses for cleaning the apartment or advertising for new tenants and, therefore, held that no further offsets were due. Thus, the judge entered judgment for plaintiffs in the amount of $1750. The judge also granted plaintiffs' request for $800 in counsel fees.

Defendant thereafter filed a motion for a new trial, in which he sought to introduce various receipts purportedly supporting his claim that he incurred costs for cleaning the carpets and advertising for new tenants. The judge denied this motion on April 1, 2014. This appeal followed.

On appeal, defendant argues that the judge mistakenly doubled the entire amount of the initial security deposit before offsetting the rent plaintiffs owed him under the terms of the lease. In response, plaintiffs concede "[i]t is true that the trial court erred in doubling the amount of the initial deposit," before deducting the rent due. We agree.

As discussed above, any offsets due a landlord for rent must be deducted from the security deposit, before any "doubling" can occur under N.J.S.A. 46:8-21.1. Reilly, supra, 406 N.J. Super. at 80-81. Thus, the judge should have first subtracted any rent plaintiffs owed defendant from the security deposit before considering whether any remaining balance was improperly withheld. Ibid.

Under these circumstances, we remand this matter to the Law Division for the judge to determine the offsets, if any, that are due defendant for unpaid rent. We note that the parties do not dispute that defendant was able to rent the apartment to new tenants on October 20, 2012. In spite of this, however, the judge found that defendant was entitled to a full month's rent for October 2012. That ruling is contrary to our Supreme Court's holding in Sommer v. Kridel, 74 N.J. 446, 457 (1977), that "[a] landlord has a duty to mitigate damages where he seeks to recover rents due from a defaulting tenant." Here, the judge did not make any findings concerning what efforts, if any, defendant made to rent the apartment for September after plaintiffs advised they were leaving the apartment on August 31, 2012. In addition, because defendant was able to rent the apartment on October 20, 2012, it does not appear he was entitled to a full month's rent from plaintiffs for that month. Therefore, the Law Division shall fully address these issues on remand.

Once the Law Division subtracts the offsets that are due defendant from the security deposit for unpaid rent, it shall proceed to determine whether any remaining balance was improperly withheld from plaintiffs and enter judgment accordingly. At that time, the court may consider anew whether an award of attorney's fees is appropriate.

We do not disturb the judge's conclusion that defendant failed to present sufficient proofs at trial to support his claim that plaintiffs were responsible for costs he allegedly incurred in cleaning the carpet in the apartment or for advertising for new tenants. As defendant concedes in his appellate brief, he did not submit any bills substantiating these claims during the trial.

Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Emmett v. Valentino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 26, 2015
DOCKET NO. A-4093-13T3 (App. Div. Mar. 26, 2015)
Case details for

Emmett v. Valentino

Case Details

Full title:JEFFREY EMMETT and MYRNA COMO, Plaintiffs-Respondents, v. FANUTI…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 26, 2015

Citations

DOCKET NO. A-4093-13T3 (App. Div. Mar. 26, 2015)